CHUTTAN Vs. STATE OF U P

JUDGEMENT

(1.) Chuttan and Naubat who were convicted by Sri VP. Kalra, the then IVth Additional Sessions Judge, Moradabad, vide his judgment and order dated 30-7-1980, under Sections 376/457/323/34, I. P. C. and whereby Chut tan was sentenced to undergo R. I. for four years under Section 376,1. P. C. , two years under Section 457, I. P. C. and six months under Section 323/34, I. P. C. and Naubat was sentenced to undergo R. I. for three years under Section 376/114,1. P. C. , two years under Section 457, I. P. C. and six months under Section 323, I. P. C. have come up in appeal before this court. 2, The prosecution story briefly stated is as follows: The prosecutrix Smt. Nanhiya, P. W. I and the accused appellants Chuttan and Naubat were all resident of village Nandpur, police station Asmoli, district Moradabad. They were all close neigh bours. The accused appellants have got their houses near the house of the prosecutrix. On the intervening night of 9/10-2- 78, the prosecutrix was sleeping in the Chappar of her house. Her two children viz. Daya, P. W. 2, who was then a minor girl aged about eight years and son Ranvir, who was younger to Daya, (P. W. 2) were also sleeping. At about mid night accused appellants Chhuttan and Naubat entered into the Chappar of the prosecutrix. A Dibia was burning there. The accused appellant Naubat caught hold of the hands of the prosecutrix and Chhuttan committed rape upon her. The prosecutrix raised an alarm and attracted Sheeshpal Singh. P. W. 3, Dhyan Singh and Tek Chand, P. W. 4. The accused appellants ran away. The prosecution maintained that the accused appellants Naubat and Chhuttan were armed with lathies and that they had assaulted the prosecutrix by means of lathies. 3. An F. I. R. , Exh. Ka-1, was lodged by the prosecutrix on 10-2-78 at about 4. 00 p. m. at police station Aumol, which lay at a distance of about five miles from the place of occurrence. The prosecutrix was medi cally examined by Dr. A. Pal, P. W. 6 of women Hospital, Moradabad on 11-2-78 at about 2. 45 p. m. She found the position of the prosecutrix as under:- "height: 167 cm. Wt. 50 Kg. Teeth 16/13 (3 teeth broken in lower jaw ). Brest: Well developed. Pubic and Auxiliary hair present, coarse bluish coloured. Bruise was present over upper surface of shoulder size 1" long 1/2" in width. No injury present over her private part. P/v Hymen old torn, vagina loose, admits three finger easily. Cornea and Uterus normal. No bleeding. Vaginal smear taken and sent for pathological test for her age advised X-ray, Rt. wrist joint, elbow joint. " 4. In pathology examination, no sperms were seen. The X-ray examination reveals that all the epiphsis of lower end Radius and Ulna had fused. The prosecutrix was found to be a grown up woman of above 19 years of age. No definite opinion on the point of rape was given by the doctor. 5. Investigation of the case was con ducted by S. I. Shiv Dhyan Singh, P. W. 7. After needful trial into the matter, the accused appellants were convicted and sentenced as aforesaid. Hence the appeal. 6. I have heard Sri G. C. Saxena, learned Counsel for the accused appel lants and Sri Lai Vijai Singh, learned Addi tional Government Advocate for State; considered their contentions and gone through the facts and circumstances of the case. 7. The prosecution relied upon the direct evidence of Smt. Nanhaiya, P. W. 1, who is the prosecutrix and her minor daughter Daya, P. W. 2, who was sleeping by the side of the prosecutrix on the "fateful night of the occurrence. Although the prosecutrix in her statement on oath before the court below has stated that the accused appellant Naubat and Chhuttan had entered into her house on the fateful night of occurrence and that Naubat caught hold of her hand and Chhuttan committed rape upon her, yet the state ment of the prosecutrix does not inspire any confidence, for the reason that at the time of occurrence the prosecutrix was a grown up woman of about 38 years of age, she was having two minor children viz. Daya, P. W. 2, who was then aged about 8-9 years and a son Ramveer, who was younger to Daya. The site plan Exh. Ka-6, as also the statement of the prosecutrix reveal that besides Chappar in question in which the prosecutrix claims to have been sleeping on the fateful night of occur rence, there were two rooms in the house of the prosecutrix. It was the month of February and according to the statement of the prosecution herself, normally she used to sleep inside the rooms. The prosecutrix stated that it was for the first time that she had slept in her chappar, the northern wall of which was broken one and which had provided a free access to the passers by. When it was the month of February and the night of occurrence was a very cold one, and further that the prosecutrix used to sleep in her rooms, there was no reason for the prosecutrix to have slept in her chappar, outside the two rooms, but for some ulterior motive or design on the part of the prosecutrix her self. It is important to note here that the husband of the prosecutrix was not resid ing with her at the time of occurrence. Earlier the prosecutrix was living in the middle of the village and that she sub sequently came to the present house. The accused appellants were admittedly close neighbours of the prosecutrix. They both were married and having children. If it was a fact that the accused appellants did enter into the house of the prosecutrix at odd hours of mid night with ulterior motive of satisfying their sexual lust against the wishes of the prosecutrix, I am of the opinion that they would not have even spared the minor daughter of the prosecutrix who is said to have been sleep ing by the side of the prosecutrix. 8. The circumstances that according to the statement of the prosecutrix herself, the accused appellant Naubat caught hold the hands of the prosecutrix and made the prosecutrix to get up and on questioning the prosecutrix as to what the matter was, Chhuttan pressed her and committed sexual intercourse with the prosecutrix, go to show that but for the express or implied consent of the prosecutrix, the accused appellants dare not to enter into the house of the prosecutrix and to commit sexual intercourse with her. It appears to me that either the accused appellants did not at all enter into the house of the prosecutrix and they being close neighbours of the prosecutrix they were falsely implicated into this case because of the some petty mis-understanding or if at all they entered into the house of the prosecutrix, the prosecutrix was a consenting party. 9. The circumstances that two inde pendent eye-witnesses of the occurrence viz. Sheeshpal Singh, P. W. 3 and Tek Chand, P. W. 4, who arrived at the spot on hearing the cries of the prosecutrix did not support the prosecution version and turned hostile and the circumstances that Dhyan Singh who was an eye- witness cited in the F. I. R. was not examined by the prosecution before the court below and further that it was not averred in the F. I. R. that the minor daughter of the prosecutrix Daya, P. W. 2, was also sleeping by the side chappar of the prosecutrix at the time of occurrence, fully go to establish the falsity of the prosecution version. I am, therefore of the opinion that the learned trial Court grossly erred in placing reliance upon the statement of the prosecutrix Smt. Nanhaiya (P. W. l ). 10. P. W. 2, Daya was the minor girl aged about 8-9 years at the time of occur rence. She was a girl of immature under standing. She appears to have given tainted a version as a consequence of the tutoring done by her mother. Her state ment too, therefore, falls short of credence. 11. Coming on the medical evidence, I find that the medical evidence of Dr. A, Pal does not support the prosecution ver sion on the point of rape. That being so, I hold that the learned court below grossly erred in convicting and sentencing the ac cused appellants. The appeal is, therefore, allowed. The order of conviction and sen tence passed by the trial Judge against the accused appellants is hereby set aside. It is directed that accused appellants if in jail, shall be set at liberty forthwith, if on bail their bail bonds shall be cancelled, but they need not to surrender. 12. Since the appeal has been al lowed, the order dated 16-1-97, passed by this court cancelling bail of the accused and direction the C. J. M. Moradabad to get the accused-appellants arrested, is hereby withdrawn. 13. Let a copy of this order be given to the appellant's Counsel forthwith on payment of usual charges; A copy of this judgment alongwith the record of the case be sent to the court below for needful compliance. Appeal allowed. .